75 P. 342 | Cal. | 1904
This action was brought to recover five hundred and thirty dollars as liquidated damages under section 629 of the Civil Code, for refusal and neglect of defendant to supply plaintiff with gas from January 9, 1900, to April 9, 1900. The defendant had judgment and plaintiff appeals.
The case was tried upon an agreed statement of facts, which is made the findings in the case by stipulation between the parties. So far as necessary to this opinion, these facts are as follows: Plaintiff formerly resided at 124 Fulton Street, San Francisco, and there took gas of defendant after depositing with it five dollars in advance and receiving in return a receipt as follows: —
"Received from E.C. Baker, five dollars as deposit in advance for gas to be used at premises No. 124 Fulton Street. *711 This deposit is only to be refunded upon the surrender of this certificate at final settlement. The regular bills of the company must be promptly paid without reference hereto.
"For the Company, W. KEEGAN."
Plaintiff moved from Fulton Street October 20, 1898, to 301 Grove Street in said city, owing $3.85 for gas used at the Fulton-Street house. Plaintiff continued to take gas of defendant at the Grove-Street house, and on December 22, 1898, defendant presented to her a bill for $2.45 for gas used at the Grove-Street house and also a bill for $3.85 for the gas consumed on Fulton Street. The plaintiff thereupon offered to pay the $2.45 for gas used on Grove Street, and offered to surrender to defendant the aforesaid receipt for the five-dollar deposit, and authorized defendant to deduct from said deposit said sum of $3.85 due for gas used on Fulton Street. The defendant refused so to do, and notified plaintiff that unless the sum of $6.30 was paid to it before noon of January 13, 1899, defendant would discontinue supplying said building on Grove Street with gas. Plaintiff failed to comply with this notice, and the gas was accordingly shut off by defendant. On January 20, 1899, plaintiff, in writing, demanded of defendant that gas be supplied for the Grove-Street house, but defendant refused to do so, and continued to refuse during the time involved in this action.
The section 629 of the Civil Code, upon which this action is based, reads as follows: —
"Upon the application in writing of the owner or occupant of any building or premises distant not more than one hundred feet from any main of the corporation, and payment by the applicant of all money due from him, the corporation must supply gas as required for such building or premises, and cannot refuse on the ground of any indebtedness of any former owner or occupant thereof, unless the applicant has undertaken to pay the same. If, for the space of ten days after such application, the corporation refuses or neglects to supply the gas required, it must pay to the applicant the sum of fifty dollars as liquidated damages, and five dollars a day as liquidated damages for every day such refusal or neglect continues thereafter." *712
The agreed statement shows that the house was within a hundred feet from the defendant's main, that the application in writing was given as required by the statute, and ten days elapsed and no gas was furnished by defendant.
The action being based upon the statute, which is penal in its nature, strict compliance with its provisions must be shown by plaintiff to entitle her to the remedy provided by its terms. It is conceded that there was no actual payment of the amount due for gas used at the Grove-Street house, but it is urged by plaintiff that payment was waived and excused by plaintiff's tender of the money and defendant's refusal to accept it. We do not think payment was excused because of the refusal to accept the money so as to give a right of action under the statute already quoted. The complaint alleges that at the time the gas was shut off and demand to continue the same was made, the plaintiff was not indebted to the defendant. This could not be true unless the obligation to pay for the gas previously supplied to the Grove-Street house had been extinguished. If upon the refusal to accept the tender, plaintiff had deposited the money with a bank to the credit of defendant, she would have thereby "extinguished" the obligation, and perhaps there would then have been no indebtedness remaining as is contemplated by section 629 of the Civil Code. Section
We advise that the judgment be affirmed.
Chipman, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the judgment appealed from is affirmed.
Shaw, J., Angellotti, J., Van Dyke, J.
Hearing in Bank denied.